108 F.4th 138
2d Cir.2024Background
- Webuild S.P.A. (formerly Salini Impregilo S.p.A.), an Italian infrastructure company, was part of a consortium contracted to expand the Panama Canal.
- Webuild initiated an arbitration under the ICSID (International Centre for Settlement of Investment Disputes) against Panama, citing alleged breaches of the Panama-Italy Bilateral Investment Treaty related to the project.
- Webuild sought to obtain discovery from WSP USA, whose predecessor served as an engineering consultant on the project, via an ex parte application under 28 U.S.C. § 1782 in the SDNY federal court.
- Initially, the district court granted Webuild’s application, but WSP and the Republic of Panama moved to vacate after the Supreme Court’s decision in ZF Automotive US, Inc. v. Luxshare, Ltd.
- The district court then vacated its prior order and quashed the subpoena, finding that an ICSID tribunal is not the kind of tribunal for which § 1782 permits U.S.-based discovery.
- Webuild appealed, arguing that ICSID tribunals are sufficiently governmental to fall within § 1782’s scope.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an ICSID arbitral tribunal qualifies as a "foreign or international tribunal" under 28 U.S.C. § 1782 | ICSID tribunals are imbued with governmental authority due to being created under an international convention and involving state action | ICSID tribunals are private adjudicatory bodies; the panel is chosen by the parties, not imbued with governmental authority, and is funded by the parties | ICSID tribunals do not exercise governmental authority and are not within the scope of § 1782 discovery following ZF Automotive |
Key Cases Cited
- ZF Automotive US, Inc. v. Luxshare, Ltd., 596 U.S. 619 (2022) (held that § 1782 discovery is authorized only for foreign or international tribunals exercising governmental or intergovernmental authority)